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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C. -v- D. P. P. [2009] IEHC 400 (18
August 2009)
URL: http://www.bailii.org/ie/cases/IEHC/2009/H400.html
Cite as: [2009] IEHC 400
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Judgment Title: C. -v- D. P. P.
Neutral Citation: [2009] IEHC 400
High Court Record Number: 2008 914 JR
Date of Delivery: 18 August 2009
Court: High Court
Composition of Court:
Judgment by: Hedigan J.
Status of Judgment: Approved
Neutral Citation Number: [2009] IEHC 400
THE HIGH COURT
2008 914 JR
BETWEEN:
T. C.
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
Judgment of Mr. Justice Hedigan, delivered on the 18th day of August,
2009
1. The applicant is an 84 year old man, who has been charged with a series of
sexual offences against his niece (‘the complainant’) between the 1st of April
1973 and the 31st of December 1978.
2. The respondent is the authority responsible for the prosecution of criminal
offences in Ireland. His statutory authority to carry out this function is derived
from the Prosecution of Offences Act 1974.
3. The applicant is seeking an order of prohibition or in the alternative an
injunction, by way of judicial review, enjoining the respondent from taking any
further steps to prosecute him on the aforementioned charges.
I. Factual and Procedural Background
4. In January 1999, the complainant informed a counsellor that she had been
abused by the applicant as a child. This complaint was made in direct response
to a question from the counsellor and it appears to be the first time that any
such allegations were made by the complainant. At that time, the complainant
was suffering from depression arising from her mother’s death and was being
treated with specialist medication. Her treating psychiatrist has opined that the
complainant may have had a number of suppressed memories from her youth,
which only resurfaced once her mother had passed away.
5. In July 1999, the complainant attended a family gathering during which she
informed a number of her relatives of the alleged abuse. She did this, somewhat
unusually, by furnishing them with written therapeutic notes of conversations
between her childhood and adult personas. The applicant was informed of the
allegations by his brother shortly after this gathering and recalls a distinct
change in the manner of certain friends, neighbours and relatives towards him.
There is also a history of animosity between the applicant and the complainant’s
husband, with allegations of insulting remarks and harassment being made and
refuted by both parties.
6. The complainant continued to receive psychiatric treatment for some time
after informing her counsellor and family members of the alleged conduct of the
applicant. On the 2nd of November 1999, her psychiatrist noted that the
complainant had expressed concern as to the ‘lies’ that the applicant’s sisters
might tell if she were to take any further steps. Similar observations were noted
on the 5th of December 1999 and on the 8th of December 1999 the complainant
is recorded as being concerned that the applicant would deny everything and
that his sisters would support him.
7. No formal action was taken in respect of the complaint for several years. It
seems that the complainant may ultimately have been prompted to pursue the
matter further by an incident which occurred on the 1st of February 2005,
wherein the applicant was witnessed by a member of An Garda Síochána as
making an offensive ‘V’ sign towards the complainant.
8. On the 8th of February 2005, the complainant visited her local Garda station
and made a formal complaint in respect of the applicant’s alleged sexual abuse
of her. A criminal investigation was commenced and a full statement of the
applicant’s complaint was completed on the 7th of March 2005. The substance of
the complaint is that the applicant did, on numerous occasions while the
complainant was aged between 12 and 17 years, rape and sexually assault her.
All the incidents, bar one, are said to have taken place in the applicant’s home
where he resided with his mother, his two sisters and his nephew who was aged
between 4 and 9 years at the time. The dwelling in question is a small, threebedroom terraced house in which the only bathroom containing the sole lavatory
is located upstairs. The complainant maintains that she would often visit her
grandmother on Sunday afternoons, while the applicant, his two sisters and his
nephew were present in the house. It is on these occasions that she alleges that
the applicant raped and sexually assaulted her, either in his own bedroom or in
the attic of the house.
9. It must be noted that the applicant’s mother, the complainant’s grandmother,
died in 1979. One of the applicant’s sisters died in June 2001 and the other in
November 2002. The latter of these two sisters made a remark during her final
days to the parish priest, to the effect that the complainant’s allegations were
untrue and that the applicant would never have engaged in such conduct. In
addition, the applicant has asserted that the garage at the rear of the house in
which the incidents are alleged to have taken place was used by two particular
gentlemen for the repair and maintenance of motor vehicles. Both of these
individuals are also now deceased.
10. On the 18th of November 2005, the applicant was arrested and questioned
by members of An Garda Síochána in respect of the alleged offences. On the
31st of March 2006, a file was sent to the respondent who directed on the 15th
of February 2007 that charges should issue. On the 8th of March 2007, sample
charges were sent to the office of the Chief Prosecution Solicitor and on the 20th
of May 2007 the applicant was again arrested and charged with the following
offences:-
(a) Twenty-five counts of indecent assault of the complainant at the
applicant’s home and one further count at the complainant’s home on
dates unknown between the 1st of April 1973 and the 31st of December
1978, contrary to common law and as provided for by section 6 of the
Criminal Law (Amendment) Act 1935;
(b) One count of attempted rape of the complainant at the applicant’s
home on a date unknown between the 19th of April 1974 and the 18th of
April 1976 contrary to common law; and
(c) Four counts of rape of the complainant at the applicant’s home on
dates unknown between the 19th of April 1974 and the 31st of December
1978, contrary to section 48 of the Offences Against the Person Act 1861.
11. The applicant’s solicitor, who was assigned under the legal aid scheme on
the date of charge, subsequently informed the applicant that on the 6th of June
2007, a judgment in civil proceedings had been awarded against him in the sum
of €460,500 in favour of the complainant. The applicant had been aware of the
proceedings and had accepted service of a plenary summons in July 2006.
However, he maintains that he had difficulty in securing legal representation to
defend the proceedings and did not ultimately participate in the litigation
process which he did not fully understand. It is apparently the case that he was
in fact present in the High Court when it assessed the damages above.
12. The book of evidence in respect of the criminal charges was served on the
applicant on the 27th of July 2007 and he was returned for trial on the same
day. Partial disclosure was made by the respondent during August 2007 and
further and final disclosure was made on the 13th of February 2008. A trial date
was assigned on the 3rd of June 2008, however the matter was removed from
the list in order to enable tests to be conducted on the applicant to assess any
cognitive impairment and his fitness to plead.
13. The applicant is in poor general health, as might be expected of a man of his
age. He also suffers from vascular disease and chronic dizziness. He underwent
prostate surgery in 1996 and has more recently suffered from bladder muscle
failure. In January 2006, he had a catheter installed which needs to be replaced
at least every two to three months.
14. The applicant was granted leave to apply by way of judicial review by
O’Higgins J. on the 28th of July 2008.
II. The Submissions of the Parties
15. The applicant argues that the lapse of time between the dates of the alleged
offences and the date on which the complainant first contacted the authorities
has resulted in unavoidable and incurable prejudice. In this regard, he contends
that a real and substantial risk of an unfair trial arises by virtue of the death of a
number of key witnesses, his age and his present physical condition. He further
submits that the delay on the part of the prosecution in advancing the
proceedings has been oppressive and amounts to a violation of his right to a trial
with due expedition and in due course of law.
16. The respondent asserts that the delay in bringing proceedings against the
applicant is more than adequately justified on the evidence. He submits that the
court is entitled to presume that the complainant was under a disability prior to
the making of her official complaint and that thereafter the authorities have
acted with due expedition. The respondent also contends that any prejudice
which may have arisen as against the applicant in the preparation of his defence
may be avoided by appropriate directions and rulings of the trial judge. Finally,
the respondent submits that the applicant’s physical condition is not atypical for
someone of his age and argues that there is no special reason why he would be
unfit to plead or in some other way unable to manage his defence.
III. The Applicable Law
17. In recent years, Irish jurisprudence has been replete with cases such as this
one, in which the Court is required to consider an applicant’s right to a trial in
due course of law and also the community’s right to see that serious crimes do
not go unpunished. These rights can and do conflict with each other and the
courts have been obliged upon occasion to resolve that conflict. In D. v. D.P.P.
[1994] 2 I.R. 465, the Supreme Court considered the relative status of these
two competing rights. Denham J. stated as follows at page 474:-
“The applicant's right to a fair trial is one of the most fundamental
constitutional rights afforded to persons. On a hierarchy of constitutional
rights it is a superior right. A court must give some consideration to the
community's right to have this alleged crime prosecuted in the usual way.
However, on the hierarchy of constitutional rights there is no doubt that
the applicant's right to fair procedures is superior to the community's
right to prosecute. If there was a real risk that the accused would not
receive a fair trial then there would be no question of the accused's right
to a fair trial being balanced detrimentally against the community's right
to have alleged crimes prosecuted.”
18. It is well-established that the right to a fair trial, as guaranteed by Article
38.1 of Bunreacht na hÉireann and Article 6 of the European Convention on
Human Rights, imports a right to a trial with reasonable expedition and without
undue delay. In D.P.P. v. Byrne [1994] 2 I.R. 236, Finlay C.J. acknowledged the
historical foundations of this aspect of the concept of due process. He stated at
page 245:-
“The right to reasonable expedition in the trial of a criminal charge would
appear clearly to precede, as a natural right, not only the Constitution of
Ireland, but the Constitution of the United States as well, and from an
historical point of view would appear to derive directly from Magna Carta
and to be part of the Common Law.”
19. In seeking to uphold the right to a fair trial, however, it is clear that the
remedy of prohibition must not simply be resorted to as a matter of course, in
all cases in which an infringement of that right is alleged. In Z. v. D.P.P. [1994]
2 I.R. 476, the Supreme Court addressed the requirements for an order of
prohibition. Finlay C.J. stated as follows at page 506:-
“[T]he onus of proof which is on an accused person, who seeks an order
prohibiting his trial on the ground that circumstances have occurred
which would render it unfair, is that he should establish that there is a
real risk that by reason of those circumstances… he could not obtain a
fair trial. […] [W]here one speaks of an onus to establish a real risk of an
unfair trial it necessarily and inevitably means an unfair trial which
cannot be avoided by appropriate rulings and directions on the part of the
trial judge. The risk is a real one but the unfairness of trial must be an
unavoidable unfairness of trial.”
20. More recently, in Devoy v. D.P.P. [2008] IESC 13, Kearns J. made the
following remarks in relation to the remedy:-
“In the context of prohibition […] an Irish court must [not] readily or too
easily resort to prohibition, whatever about other remedies, when
vindicating rights under Article 38.1. Under our jurisprudence, as noted
by Denham J. in D.C. v. D.P.P. [2006] 1 I.L.R.M. 348, prohibition is a
remedy to be granted only in exceptional circumstances. The Court does
not adopt a punitive or disciplinary role in this context. Further, any court
called upon to prohibit a trial must give due weight to the gravity and
seriousness of the offence when exercising this jurisdiction. It must
analyse the causes for delay with great care, weighing up and balancing
the role of both the prosecution and the applicant and their respective
contributions to delay.”
21. In considering the period which has elapsed since the dates of the alleged
offences, the Court is required to consider separately the years prior to the
complainant’s formal notification of the Gardaí, and those which have passed
subsequently. Different considerations arise in respect of these periods of time
and distinct consideration must be afforded to any prejudice arising therefrom.
(a) Prosecutorial Delay
22. The issue of prosecutorial delay, that is delay following the making of a
formal complaint, has received considerable curial attention in this jurisdiction.
In the decision of Devoy v. DPP [2008] IESC 13, Kearns J. engaged in a lengthy
and informative analysis of the applicable principles. He stated as follows:-
“The principles governing prosecutorial delay in Irish Law have been laid
down in a number of Irish cases including P.M. v. Malone [2002] 2 I.R.
560 and P.M. v. DPP [2006] 3 I.R. 172 and may be summarised as
follows:(a) Inordinate, blameworthy or unexplained prosecutorial
delay may breach an applicant's constitutional entitlement
to a trial with reasonable expedition.
(b) Prosecutorial delay of this nature may be of such a
degree that a court will presume prejudice and uphold the
right to an expeditious trial by directing prohibition.
(c) Where there is a period of significant blameworthy
prosecutorial delay less than that envisaged at (b), and no
actual prejudice is demonstrated, the court will engage in a
balancing exercise between the community's entitlement to
see crimes prosecuted and the applicant's right to an
expeditious trial, but will not direct prohibition unless one
or more of the elements referred to in P.M. v. Malone
[2002] 2 I.R. 560 and P.M. v. DPP [2006] 3 I.R. 172 are
demonstrated.
(d) Actual prejudice caused by delay which is such as to
preclude a fair trial will always entitle an applicant to
prohibition.
Much of the Irish Law on this topic has been derived from the seminal
decision on prosecutorial delay delivered by the U.S. Supreme Court in
Barker v. Wingo 407 US 514 (1972). The principles laid down by the U.S.
Supreme Court were referenced to the constitutional guarantee of a
"speedy" trial contained in the Sixth Amendment of the U.S. Constitution.
That case emphasised that in considering the right to a speedy trial there
could be no inflexible rule and that every case must be met on an ad hoc
basis in which the conduct of the prosecution and that of the defendant
are weighed. In that context, the U.S. Supreme Court identified four
factors which should be assessed in determining whether a particular
defendant has been deprived of his constitutional right to a speedy trial:(a) The Length of the Delay
Unless there is a delay which is presumptively prejudicial,
there is no necessity for an enquiry into the other factors
that go into the balance. The length of delay which will
demand an enquiry is necessarily dependent upon the
particular circumstances of the case. Thus the delay which
can be tolerated for an ordinary street crime is
considerably less than for a complex conspiracy case.
(b) Reasons for Delay
Different weights should be assigned to different reasons. A
deliberate prosecution attempt to delay the trial in order to
hamper the defence should weigh heavily against the
prosecution; more neutral reasons such as negligence or
over-crowded court rooms might weigh less heavily but
must nonetheless be considered, given that the ultimate
responsibility for such circumstances rests with the State
rather than the defendant. A valid reason, such as a
missing witness, might serve to justify delay.
(c) Role of the Applicant
An applicant's assertion of his right to a speedy trial is
entitled to strong evidentiary weight in determining
whether he is being deprived of his constitutional right; a
failure to assert the right may make it more difficult for an
applicant to prove that he wanted or was denied a speedy
trial. In this context the U.S. Supreme Court noted that
delay may sometimes operate to the advantage of a
defendant.
(d) Prejudice
Among the interests of defendants which the speedy trial
right is designed to protect are: (i) the prevention of
oppressive pre-trial incarceration; (ii) the reduction of
anxiety and concern of the accused and (iii) most
importantly, the limitation of any possibility that the
defence will be impaired.
I do not regard this statement of principles as being different in any
significant way from those contained in the Irish decisions on
prosecutorial delay. In my view these principles apply with equal force
where systemic delay is under consideration. Both forms of delay affect
an accused person in the same way. Furthermore, the template or
framework outlined in Barker v Wingo setting out how these principles
should be applied strikes me as both logical and practical for courts or
judges when assessing individual cases. I have separately indicated these
views in McFarlane v Director of Public Prosecutions (Unreported,
Supreme Court, 5th March, 2008).”
(b) Complainant Delay
23. The issue of complainant delay, that is prior to the commencement of any
criminal investigation, was afforded extensive treatment in the decision of H. v.
D.P.P. [2006] IESC 55. Murray C.J. considered the position as follows:-
“Over the last decade the courts have had extensive experience of cases
where complaints are made of alleged sexual abuse which is stated to
have taken place many, many years ago. It is an unfortunate truth that
such cases are routinely part of the list in criminal courts today.
At issue in each case is the constitutional right to a fair trial. The Court
has found that in reality the core inquiry is not so much the reason for a
delay in making a complaint by a complainant but rather whether the
accused will receive a fair trial or whether there is a real or serious risk of
an unfair trial. In practice this has invariably been the essential and
ultimate question for the Court. In other words it is the consequences of
delay rather than delay itself which has concerned the Court.
The Court approaches such cases with knowledge incrementally
assimilated over the last decade in some of which different views were
expressed as to how these issues should be approached. In such cases
when information was presented concerning the reasons for the delay it
was invariably a preliminary point to the ultimate and critical issue as to
whether the accused could obtain a fair trial. In all events, having regard
to the Court's knowledge and insight into these cases it considers that
there is no longer a necessity to inquire into the reason for a delay in
making a complaint. In all the circumstances now prevailing such a
preliminary issue is no longer necessary. […]
The issue for the Court is whether the delay has resulted in prejudice to
an accused so as to give rise to a real or serious risk of an unfair trial.
The Court would thus restate the test as:
"The test is whether there is a real or serious risk that the
applicant, by reason of the delay, would not obtain a fair
trial, or that a trial would be unfair as a consequence of the
delay. The test is to be applied in light of the circumstances
of the case."
Thus, the first inquiry as to the reasons for the delay in making a
complaint need no longer be made. As a consequence any question of an
assumption, which arose solely for the purpose of applications of this
nature, of the truth of the complainants” complaints against an applicant
no longer arises. The inquiry which should be made is whether the degree
of prejudice is such as to give rise to a real or serious risk of an unfair
trial. The factors of prejudice, if any, will depend upon the circumstances
of the case.
There is no doubt that difficulties arise in defending a case many years
after an event. However, the courts may not legislate, the courts may not
take a policy decision that after a stated number of years an offence may
not be prosecuted. Also, as the legislature has not itself established a
statute of limitations that itself may be viewed as a policy of the
representatives of the People. Thus each case falls to be considered on its
own circumstances.”
24. It is thus clear that each case of complainant delay will come to be
considered on its own facts. That is not to say, however, that caveats of a
general nature may not be applied. In P.H. v. D.P.P. [2007] IESC 3, for
example, Hardiman J. suggested that prejudice arising from lost evidence or
missing witnesses might be insufficient to prohibit a trial in circumstances where
the relevant aspects of a given defence could be proven by alternate means. He
stated:-
“It seems to me that the Director has been able to point to the probable
availability from other sources of at least the essence of the […]
evidence, and that this is sufficient to avoid the inference that there is a
real or serious risk of an unfair trial.”
(c) The Omnibus Test
25. In addition to the foregoing specific principles relating to the different
strands of delay, it is now clear that as a general rule the Court is entitled to
consider the cumulative effect of all factors in the case, in deciding whether or
not to grant an order of prohibition. This is sometimes referred to as the
‘omnibus’ test. In J.M. v. D.P.P. [2004] IESC 47, McCracken J. affirmed that a
court must have regard to “the totality of the circumstances surrounding the
proposed prosecution” and affirmed that prohibition could still be granted “even
though no single factor would justify [such a remedy]”. In P.T. v. D.P.P. [2007]
IESC 39, the Supreme Court applied this principal in prohibiting the applicant’s
trial. Denham J. considered the issues in the case as follows:-
“In this case the factors relevant to the applicant's position are: (i) it is
an old case, while this is not unusual in such a prosecution, it is a factor,
(ii) the applicant is elderly, in his 87th year, and, (iii) the ill-health of the
applicant.
On the other hand, the factors relevant to the prosecution require to be
considered. There is the public nature of criminal law. Prosecutions are
taken on behalf of the People of Ireland by the Director of Public
Prosecutions. The court does not interfere lightly with a decision of the
Director.
Factors may exist, or may develop after a decision has been made by the
Director of Public Prosecutions, which would render a trial unjust. The
issue in this case is whether such an exception has occurred. In this
balancing exercise the court must give consideration to the right of the
public to have crimes prosecuted. This is not an absolute, for
prosecutions are taken when they are in the public interest. It is part of a
justice system which is for the common good, which includes
consideration of the constitutional requirement of due process. A
prosecution is not an exercise in vengeance. While a court should give
careful regard to the position of victims, it must protect the integrity of
the justice system as a whole.
No single factor renders this case an exception. This decision does not
mean that a person may not be prosecuted for a crime committed many
years ago, nor that a person in their eighties may not be prosecuted, nor
that a person with ill-health may not be prosecuted. It is the cumulative
effect of all the factors which bring this case within the category of an
exception requiring a balancing exercise to be conducted by the court. Of
specific importance is that it is an old case, that the prosecution took
some time to mount (I am not finding that there was prosecutorial delay
but merely recording the fact of the time lapse), that the applicant is an
elderly man, in his 87th year, and that he is in bad health.
It demeans a system of justice if its process is one of vengeance, or has
such a perception. It evokes concepts of primitive jurisprudence. The
People of Ireland under the Constitution require that there be due
process in the justice system. The courts are required to protect the
integrity of that system, which may mean that in exceptional
circumstances a prosecution should be restrained. It is a question of
proportionality.”
IV. The Decision of the Court
26. It falls to the Court, therefore, to apply the principles which have been
outlined above to the circumstances of this particular case. Turning first to the
issue of prosecutorial delay, I am not satisfied that the period of some 27
months between the original complaint and the arrest of the applicant is
sufficient, of itself, to presume irreparable prejudice and direct the prohibition of
the trial. I am also unable to accept that any prejudice arising from this delay in
itself, such as the deterioration in the applicant’s health, is sufficient to outweigh
the public interest that crimes of the utmost gravity should be prosecuted. While
the time taken by the Gardaí in the present case to arrest and charge the
applicant could be described as less than ideal, the majority of the impediments
to his defence had arisen several years prior to the complainant’s first formal
allegations. The delay to which the court must particularly direct its attention in
this case is the precommencement delay i.e. the delay prior to the complainant’s
making her complaint to the Gardaí.
27. It is clear that the greatest part of the prejudice alleged by the applicant was
occasioned during the course of the complainant’s delay in contacting the
authorities. In this period, the applicant’s mother and two sisters, each of whom
would have been present in the house when the alleged offences took place,
have passed away. There is at least some evidence to suggest that they might
have supported his version of events and, in any case, they would certainly have
been capable of giving testimony of a highly probative value. In addition to
these crucial witnesses, it has not been contradicted that two further individuals,
who regularly worked at the rear of the house throughout the period of the
alleged offences, are also deceased. It is open to doubt how much they could
have added to the applicant’s defence but their unavailability is nonetheless
something to be weighed in the balance. In addition to the death of witnesses, it
is equally apparent that the applicant’s health has deteriorated considerably
throughout the latter portion of the complainant’s delay. While I reject out of
hand the suggestion that the complainant was guilty of deliberate stalling
between the date on which she first made the allegations to her immediate
family and the date of her formal complaint, it is undoubtedly the case that the
applicant’s defence has been significantly prejudiced during that period.
28. The applicant has engaged with the evidence in seeking to illustrate the level
of prejudice which arises against him. I am unable to agree with the
respondent’s suggestion that the applicant might be able to prove his case by
alternative means, in the manner envisaged by Hardiman J. in P.H.. The sole
surviving member of the applicant’s household, apart from the applicant himself,
is his nephew who was a very small child at the time of the alleged offences. As
such, he is unlikely to be capable of giving evidence which would adequately
compensate for the loss of several key witnesses who were adults at all material
times. Finally, I am unable to conclude that the demonstrable prejudice which
has arisen as against the applicant could in some way be avoided or ameliorated
by appropriate warnings and directions of the trial judge.
V. Conclusion
29. As observed by Denham J in D. v. D.P.P. (cited above) “the applicant’s right
to a fair trial is one of the most fundamental constitutional rights afforded to
persons.” It is the mark of a civilized society governed by the rule of law. It
requires and it receives the most careful protection not only in the Constitution
of Ireland but also in the European Convention on Human Rights and in
constitutions throughout the world. It requires the courts to ensure the
maintenance of the highest standards in criminal trials even, indeed especially,
in storms of controversy or the hardest of cases. The courts do not lightly
interfere with the decision of the Director of Public Prosecutions to bring a
prosecution. However, it is ultimately the courts that must decide where lies the
balance between society’s undoubted interest in the prosecution of serious
offences and an accused’s right to a fair trial which itself is something in which
society also has an undoubted interest. The test to be applied by the Court in
determining whether it must intervene where delay is alleged is as set out above
in H. v. D.P.P. - is there a real and serious risk that the applicant by reason of
the delay would not obtain a fair trial, or that a trial would be unfair as a
consequence of the delay? The test is to be applied in light of the circumstances
of the case.
30. Turning therefore to the facts of this case, the charges made are of the most
serious abuse of an innocent child. They relate to a period of time between 31
and 36 years ago. The complainant credibly states that she sublimated terrible
memories of these events until 1999. She states that after revealing these
events to her family, she was afraid to bring charges because her two aunts, the
sisters of the applicant who lived with the applicant in the house in which it is
alleged the assaults occurred, would deny the abuse and support their brother.
She did not make her complaint to the Gardaí until 5th of February 2005. In the
period between 1999 and 2005, these two sisters died – in June 2001 and
November 2002. The evidence of these two women would undoubtedly have
been of central importance in any prosecution of the applicant on the charges
brought in February 2005. No court or jury will now ever have the benefit of any
evidence they might have given and any cross examination in respect thereof.
There is evidence before this court from both the applicant and the respondent
that both women denied the abuse alleged. The loss of this evidence in my view
has irretrievably damaged the ability of the applicant to defend himself and must
therefore give rise to a real and serious risk of an unfair trial.
31. Taking this finding into account together with the overall delay including the
27 months between original complaint and the arrest of the applicant, his age
(now 84 years) and state of health, I am confirmed in my view that the Court’s
duty is clear. In defence of the integrity of the criminal process and the right of
the applicant to a fair trial which, upon the evidence, I find is no longer possible,
I must grant the relief sought prohibiting the continuance of the prosecution
herein.
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